There is no evidence whatever showing, or tending to show, any objection on part of the Caldwell Oil Company. The only controversy was with the Warren & Venango Railroad Company, who it appears claimed the same location, and to that company the Caldwell Oil Company had released their right of way. Mr. Chapin, the superintendent, said they had got their pay, and all they wanted was a railroad.

On a question of location between two rival companies, that which has first made a survey and staked out a center line is entitled to a priority of right. Wilkesbarre Jr P. R. Co. v. Danv'ille dc H. R. Co., 29 Leg. Int. 373; West End Pass. Ry. Co. v. Philadelphia City Pass. Ry. Co., 30 Leg. Int. 257; New Brighton &‘ N. C. R. Co.’s Appeal, 105 Pa. St. 13. Upon this ground, after a somewhat protracted litigation, it was determined, in 187 4, that the Titusville & Petroleum Company was entitled to the location, and the Warren & Venango Company was finally enjoined from any further interference. Titusville (it Petroleum Co. v. Warren d: Ve'na'ngo Co., 4 Leg. Gaz. 117. Pending this litigation, the work of construction ceased, and it was not afterwards resumed for several years. In the mean time the property and franchises of the Titusville & Petroleum Company were, upon execution process, sold at a public judicial sale. The Titusville & Oil City Railroad Company succeeded to their rights, and the latter completed the construction and equipment of the 'road.

The plaintiff, Henry R. Davis, and Mr. Chapin, who was at the time superintendent of the Caldwell Oil Company, in the year 1871, commenced to operate for oil on the ground covered by this lease. By what authority from the company their operations were conducted is not shown. It is conceded, however, that Davis has been personally engaged in the production of oil on these premises ever since, and perhaps before, the year 1871. He says that he has been so engaged since 1868. It is clear, then, that he had actual personal knowledge of the location and grading of the defendant’s road. In 1871, when he says he and Chapin became partners, the road had not only been located, but was in fact wholly or partially graded. The work of construction, after this time, was, in consequence of the litigation, and perhaps of the pecuniary embarrassment of the company, long delayed, but there was no evidence of abandonment. There was enough, at all events, to put an ordinarily prudent man upon inquiry. It cannot be said that Davis, in taking a lease in 1876, could be regarded as a purchaser without notice. Indeed, by whatever arrangement or agreement with the Caldwell Oil Company Davis may have conducted his operations, it is not shown that he had any written evidence of title until the fourteenth of July, 1882, and at that time the railroad was wholly completed, fully equipped, and in actual operation. It is true that the lease of fourteenth of July, 1882, was written to take effect from the year 1876, but it is plain that, under the pre-existing parol agreement, he was, from 1876 to 1882, but a. tenant at will by the express terms of the statute.

The location of the road in 1870, as well as the partial construction in 1870 and 1871 , and the completion of it in 1880, was without any agree

ment as to damages, and without any previous legal proceedings in adjustment thereof. No bond had been either tendered or filed; but, as the entry of the company was without objection of the owner, no trespass was committed. Upon the subsequent filing of the bond in 1880, therefore, the title to the right of way vested, not through the proceeding initiated by the bond, but by the original occupation of the land, under the charter, for the purposes of the road. Thus, in Lawrence’s Appeal, 78 Pa. St. 365, a railroad company constructed their road without agreement as to damages, and without any legal proceedings, but also without objection by the owner. Subsequently, proceedings to assess damages were commenced, but the case was compromised, and the damages released. After the construction of the road, but before the compromise, the tract was leased for mining purposes. In the decision of i that case this court said:

“The railroad company had actually appropriated the land, and built and used its railway, long before any title, by lease of the coal mines. had vested in the defendants. This is admitted in the answer. The owner of the land made no objection to this appropriation, but after a proceeding to assess the damages had been prosecuted, finally compromised. and released. The title of the railroad company came, not through this proceeding, but by its original entry and appropriation without objection. The release operated, not by way of an original conveyance, but by way of a discharge for the damages incurred by the entry and construction of the railway. It is clear, therefore, that, when the defendants obtained their lease, they took it subject to the previous easement and right of way of the railroad company over the surface. The railroad was then in lawful existence and use. The owners made no defense to the right of the railroad company to appropriate the land, and these tenants cannot now set up a defense which they waived, if they had any.”

In the case we are now considering the road was located and partially constructed in 1870, and that was an appropriation of the land. “Where a railroad has been located, and the land has been taken and appropriated for public use, the right of the land-owner to sue for his damages is complete, and he may recover all which may be caused by the location, and by the subsequent construction. He can have but one action. The damages cannot be severed. Security for one is therefore security for all. Neal v. Pittsburgh (it C. R. 00., 2 Grant, Gas. 137.” Wadhams v. Laclcawannart‘ B. R. 00., 42 Pa. St. 303. The permanent location ofa railroad is an appropriation of the ground, and vests a right to the damages assessed, (Beale v. Pennsylvania R. 00., 86 Pa. St. 509,) and the owner of land at the time of the actual location is the party entitled to the damages.

In the case now under consideration the jury has found that the road was permanently located, and, indeed, partly constructed, over the premises in question, in the year 1870; and this, being without objection of the owner, under all the authorities was an appropriation of the land for the purposes of the road. The Caldwell Oil Company was then the owner of this land in fee. The plaintiff had no title whatever, and we cannot see how he can have any claim for damages. A proceeding is now pending for assessment of the damages of the Caldwell Oil Company, and the whole question will be there adjudicated as of the date of the appropriation of the land. This disposes of the fourth, sixth, seventh, eighth, and ninth assignments of error, which involve the main and only important question in the cause.

The remaining assignments relate chiefiyto the admission of evidence, and are wholly without merit. The cross-examination of Charles Paiste, so far as it related to his former estimate of the value, was clearly competent, and that was the extent to which the examination was allowed to proceed. The property and franchises of the Titusville & Petroleum Centre Company having been transferred by a judicial sale to D. P. Corwin, or to John Scott, the record of their respective deeds was certainly admissible in evidence to establish the transmission of their title, in the railroad property, to the newly-organized company. The franchises of the company were derived through its charter, and the record of the deeds was admissible to establish their right of way over the lands appropriated by their predecessors in title. As a right of way may be said to be an interest in land, the deeds are within the recording acts.

We discover no error in this record, and the judgment is affirmed.

KELLY v. HUMBOLDT FIRE Ins. Co.1
(Supreme Gourt of Pennsylvania. November 15, 1886.)

FIRE INSURANCE—POLICY—UNOCCUPIED BUILDINGS—FORFEITUBE as To PART, Is FORFEITURE AS TO ALL.

In consideration of $48, A. was insured by B., an insurance company, against loss by fire to the amount of $2,400; $2,000 on two connected dwellinghouses,--$1,000 separately on each building—and $400 on a dwelling-house in the rear of the first~mentioned dwelling-houses. It was stipulated in the policy that “if any building herein described be or become vacant or unoccupied for the purposes indicated in this contract, ” unless by the consent of B., the policy should become void. The last-mentioned house had been vacant about four weeks, when a fire occurred, destroying all the houses. Held, that the consideration being entire, the contract was entire, and that no recovery could be had for the damage done to the other two houses, though nothing had been done in them to vitiate the policy.

Error to common pleas No. 2, Allegheny county. Debt, by Edward Kelly against the Humboldt Fire Insurance Comany.

p On July 7, 1882, the defendant, for the consideration of $48, insured plaintiff against loss by fire to the amount of $2,400; $2,000 on his two connected dwelling-houses on Main street in the borough of Braddock, being $1,000 separately on each building, and $400 on a house situate on an alley in the rear of the first two. The policy stipulated that it should “become void unless consent in writing is indorsed by the company hereon, in each of the following instances: * * * (4) If any building herein described be or become vacant or unoccupied for the purposes indicated in this contract.” In the latter part of May, 1884, the house on the alley became vacant by reason of the tenant moving away, and so continued until June 19, 1884, when all the buildings were de— stroyed by fire. Upon this state of facts the court instructed the jury to render a verdict of $2,551.60 in favor of plaintiff, subject to the opinion of the court upon a question of law reserved, inter alt/1., “whether, the plaintiff can recover, on one or more of the buildings, the amount of the policy on such, if no recovery can be had on the other; and, if there can be a partial recovery, the court to mould the verdict accordingly.” The court subsequently entered judgment upon the point in favor of defendant non obstante veredicto, whereupon plaintifi' took this writ.

Carnahan dz Son and H. T. Watson, for plaintiff in error, Kelly.

Since McClure v. Insurance Co., 90 Pa. St. 277, it is no longer an open question that a failure to obtain the consent of the insurance company permitting the insured to allow the premises to remainvacant avoids the policy. But in no case is it decided that such vacancy of one building operates to forfeit the insurance on other buildings embraced in the same policy. The contrary is ruled in Clark v. Insurance Co., 6 (lush. 342; Insurance Co. v. Walsh, 54 Ill. 164; Loehner v. Insurance Co., 17 M0. 247; Merrill v. Insurance Co., 73 N. Y. 452.

Schoyer d’c Harrison and S. Schoyer, Jr., for defendant in error, Humboldt Fire Ins. Co. This contract is entire, and there can be no recovery. Fire Ass’n v. Will

iarnson, 26 Pa. St. 196; Gottsman v. Insurance 00., 56 Pa. St. 210; McClure v. Insurance 00., 90 Pa. St. 277; Long v. wBeeber, 106 Pa. St. 470.

TRUNKEY, J. In consideration of $48 the plaintiff was insured by the defendant against loss by fire to the amount of $2,400; $2,000 on his two connected dwelling-houses,——$1,000 separately on each building,— and $400 on a dwelling-house in the rear of the first-described buildings. The consideration is entire, and the buildings are insured together for a. gross sum, though a separate valuation is put on each. Had only one of the buildings been burned, the plaintiff could not recover damages exceeding its valuation.

The plaintiff, admitting that the vacancy of the house on the alley avoided the policy as to that house, contends that the policy continued in force as to the other buildings. This depends on the terms of the contract,—-whether entire or severable. As a general rule, where the consideration is entire and single, the contract must be held to be entire, although the subject may consist of many distinct and wholly independent items. The leading case on which the plaintiff relies to take this policy out of the operation of that rule is Merrill v. Insurance (70., 73 N. Y. 452, where it was held that a contract of insurance upon several separate and distinct classes of property, each of which is separately valued, in consideration of a premium in gross on the sum total of the valuation, is severable, and a breach of the conditions may avoid the policy as to one of the items, but not affect it as to the others. FOLGER, J .,in an able opinion, remarks that upon the question there has been contrariety of opinion, cites conflicting-rulings in other states, and adds: “In such case we must learn whether there are adjudications in our own state authoritative upon us, or to what conclusion the reason of the case will lead us.”

Turning to the decisions of our own state, we find that the precise points now discussed have been decided, namely, that such a contract of insurance as the one on which this suit is founded is entire, and that an act done in violation of the condition of the policy, after the making of the contract, in one of the buildings insured, avoids the policy as to the whole. Where, in consideration of $30, property was insured for $2,000, of which 6500 was on barn and stable, and one thousand five hundred on personalty in a hotel, it was held that the contract of insurance was entire, and not severable. THOMPSON, C. J ., in an elaborate opinion, reached the conclusion, upon principle and authority, that a violation of the condition with reference to the realty avoided the policy as to both personalty and realty. Gottsman v. Pennsylvania Ins. Co., 56 Pa. St. 210. In Trustees of Fire Ass’n v. Williamson, 26 Pa. St. 196, the policy, for a single premium, covered three distinct but adjoining buildings, to the amount of 8666.663‘ on each. After the insurance one of the buildings was changed to a grocery store, in which, without the knowledge of the assured, the tenant put and kept a keg of gunpowder. The keeping of the gunpowder was in violation of a condition of the policy which provided that for such violation the policy should be void. It was decided that the contract was entire, and that no recovery could be had for the damage done to the other two houses, though nothing had been done in them to vitiate the policy.

These cases cover all the points in the present, and are authorities. It would be possible to overrule them, but not to distinguish this so as to take it out of their doctrine. Those cases were not decided without reason or consideration. The doctrine is considered in '\Vood, Fire Ins. p. 384, par. 165, where, after referring to the ruling in Clark v. Insurance Co., 6 Cush. 342, it is said:

“It is difficult to understand how it can be held that these contracts are several when a gross premium is paid for the entire insurance. The court cannot say, as a matter of law, neither can the fact be shown, that the insurer would have been satisfied to take the risk separately at the same premium. By consenting to pay a gross premium for the insurance, the assured has signified his willingness to let the policy stand as an entire contract, subject in all its parts to the condition imposed by the insurer, and there is neither reason nor equity in permitting the assured, after he has violated one of the conditions of the policy as to a part of the risk. to turn around, and say that this only affected that portion of the risk to which the breach related.”